' The petitioner/plaintiff impugns the appellate decree dated 18-5-1991 whereby a declaratory suit filed by him has been dismissed. The learned Appellate Court has set aside the decree of the learned trial Court, dated 7-5-1989.
2. The facts of the case are simple. The petitioner/plaintiff is the legal heir of Mst. Jindan Mai daughter of Imam Bakhsh while the respondents are the legal heirs of Ahmad Yar son of Imam 3akhsh, who died in 1935, owned the suit-land in two Mauzas i,e, 19 Kanals, 18 Marlas in Mauza Kharal and 12 Kanals, 14 Marlas in Mauza Kherpur. On the death of Imam Bakhsh, his son Ahmad Yar (predecessor-in-interest of the respondents/defendants) obtained Mutation No,51 dated 29-1-1936 and Mutation No,43 dated 2-5-1937 in respect of the entire property of Imam Bakhsh to the exclusion of Mst. Jindan Mai.
3. It is the case of the petitioner/plaintiff that Mst. Jindan Mai being a daughter and legal heir of Imam Bakhsh, was entitled to 1/3rd of the suit-land. She, therefore, impugned the two mutations referred to above. The suit was resisted by the respondents/defendants on the ground, firstly, that it was barred by limitation and, secondly, on the plea that the inheritance in the suit property was governed by customary law and not by Shariat or Islamic Law, learned trial Court framed as many as 8 issues on which the parties led evidence. However, only Issues Nos.3 and 6 are relevant for the purpose of deciding the present petition. Learned counsel for both sides also confined their arguments to these issues, which were in following terms:-- "(3) Whether the suit is within time? OPP
(4) Whether deceased Imam Bakhsh was governed by custom in the matter of inheritance and if so what that custom was and whether the plaintiff was not entitled to inherit Imam Bakhsh under the said custom? OPD"
4. The learned trial Court after considering the evidence of the petitioner decreed the suit and granted the declaration of title sought by the petitioner. However, an appeal filed by the respondents/defendants was allowed by the learned Appellate Court. Hence, this revision petition.
5. From the above it is evident that the decision on both issues noted above depends upon the question as to whether the inheritance of Imam Bakhsh was subject to customary law or Shariat.
6. I have gone through the evidence on record with the assistance of both learned counsel. Wajib- ul-Arz for Mauza Kherpur (Exh.P.1) and the Wajib-ul-Arz for Mauza Kharal (Exh.P.2) clearly stipulate that in respect of Muslims the Islamic law of inheritance was the governing law in the said Muazas.
To rebut this evidence, the respondents produced Mutation No,224 (Exh.D.14) and Mutation No,118 (Exh.D.17). On the basis of these documents it was argued that daughters were excluded from inheritance in the concerned Mauzas. This contention, however, is misconceived. In respect of Exh.D.14 there is no proof that propositus had daughters but were excluded by the sons because of customary law. Exh.D.14, therefore, cannot be taken as proof of customary law particularly in view of the Wajib-ul-Arz Exh.P.1 and Exh.P.2 discussed above. As to Exh.D.17, this document itself shows that the son inheriting the property mentioned therein was the sole (Aklota) son of the propositus. Thus, Exh.D.17 also cannot be taken as proof of customary law.
7. In addition to the above learned counsel for the petitioners! Referred to the case titled Muhammad Yousaf through legal heirs and 2 others v. Mst. Karam Khatoon 2003 SCM R 1535 to show that the Islamic Law of Inheritance was relevant in the erstwhile State of Bahawalpur.
8. In view of the foregoing discussion I am not left in any doubt that the inheritance of Imam Bakhsh was governed by Islamic law and not by customary law. It follows, therefore. That the petitioner was entitled to inherit 1/3rd of the suit property. Since the petitioner and. Before him Mst. Jindan Mai became co-owners of the suit-land along with Ahmad Yar through inheritance, limitation did not run against them.
9. In view of the above discussion it is clear that the learned Appellate Court committed error in law by reversing the findings of the learned trial Court on Issues Nos.3 and 6. The appellate decree dated 18-5-1991 is, therefore, set aside and as a result the decree of the learned trial Court dated 7- 5-1989 stands restored. The petitioner shalt also be entitled to costs throughout.